'Don't Ask, Don't Tell' Has Bachmann's Support

By JAMES DAO

Published: August 16, 2011

If elected president, Michele Bachmann said over the weekend, she would favor reinstating the ban on openly gay or lesbian people serving in the military, a policy known as ''don't ask, don't tell.'' Former Senator Rick Santorum has said similar things in the past.

Turns out that it wouldn't be hard to do, legal experts say.

That's because the law repealing the ban that President Obama signed last December did not expressly order the Pentagon to allow openly gay or lesbian troops in the armed forces. Congress merely laid out a process under which the ban could be lifted. Under that process, the president, secretary of defense and chairman of the Joint Chiefs of Staff had to certify that repeal would not undermine recruiting, retention, morale and other indicators of what is commonly called military readiness.

Once that certification was made and sent to Congress, the secretary of defense then had to prepare and issue new regulations allowing gays and lesbians to serve openly. That is where the process is now: the regulations are being written and the ban will be lifted on Sept. 20.

But because Congress did not require the military to allow open service, a new president could order his or her new secretary of defense to issue new regulations that effectively reinstate the ban, said Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, which advocates for gay and lesbian troops.

Mr. Sarvis said that if a Republican president were to take that path, it would essentially return the military to the pre-don't ask era, when gays were banned under regulation. In those years, which date back at least to World War II, he said, there were no federal statutes expressly prohibiting openly gay people from serving. It wasn't until President Clinton pushed to reverse those regulations that Congress enacted don't ask, don't tell in the 1990s, statutorily prohibiting open service.

Mr. Sarvis said a Republican president could also push to have the ban reinstated through legislation. But that might not be possible if the Democrats continued to control one house of Congress.

Either way, Mr. Sarvis said he believed that reinstating the ban would be difficult, in large part because senior military leaders prefer continuity in policy and would not have much appetite for reversing course so quickly.

''This is not going to be a very easy thing to undo,'' Mr. Sarvis said.

This is a more complete version of the story than the one that appeared in print.